CYIL vol. 14 (2023)

CYIL 14 (2023) THE VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … compensation for the victims of a potential nuclear incident by a new international treaty (thereinafter “Revised Brussels Supplementary Convention”). The above outlined interpretation on the mutual relation between the “Paris” and “Viennese” regime of nuclear liability has led to the emergence of two separate liability frameworks. 53 Consequently, at the moment of the accident at Chernobyl, two international regimes of nuclear liability existed, which were separated from each other. Consequently, a nuclear incident, occurring in the territory of one regime and causing damage in the territory of another would not be covered by any compensation scheme. This lack of connection between the two existing regimes of liability was addressed by adopting of the Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention (thereinafter “Joint Protocol”) 54 connecting the international regimes, established under the Paris and Vienna Conventions, as a kind of a virtual “legal bridge”. Having said this, one must bear in mind that not all Contracting Parties to the Vienna Convention currently participate in the regime established by the Joint Protocol. The same applies, however, for the countries of Western Europe, which currently participate in the regime of the Revised Paris Convention. None of them have joined the Joint Protocol so far. 2.3 Ideological reservations against the Vienna Convention The Preamble of the Vienna Convention proclaims that one of the main aims to this instrument is to “ contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems .” 55 Indeed, the Vienna Convention was originally designed to also attract those states belonging to the then existing Soviet bloc. The fact is, that the Union of Soviet Socialistic Republics (USSR), together with the Belarussian Soviet Socialistic Republic, participated at the International Conference on Civil Liability for Nuclear Damage. Later, however, they strictly denounced the principles provided by the newly established liability regime. In particular the principle of channelling of liability to the operator represented a major subject of criticism by the Soviet diplomacy. 56 In the Soviet scholarship of international law, a rather strong line of argument has emerged that pleaded for establishing of an international regime upon the liability of the states, rather than upon the liability of private licence holders (operators). 57 It was argued, that the concept of channelling, which had been introduced into the liability scheme of both the Paris and Vienna Conventions, was influenced by the legislation of Western European states, which favours the interests of industry over the interests of potential victims. 58 Consequently, both the Soviet diplomacy and scholarship argued in favour of establishing of a new international 53 See BUSEKIST, O. Haftungsprobleme im Verhältnis zwischen Vertragsstaaten des Pariser und des Wiener Atomhaftungsübereinkommens, in PELZER, N. (ed), Friedliche Kernenergienutzung und Staatsgrenzen in Mitteleuropa , Baden Baden: Nomos Verlag, 1987, at pp. 271–288. 54 The Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention (adopted 25 September 1988, entered into force on 27 April 1994), INFCIRC/402. 55 The Vienna Convention, Preamble. 56 See HANDRLICA, J. The unbearable lightness of nuclear jurisprudence (2021) 39 Journal of Energy and Natural Resources Law , at p. 380. 57 See KECSKÉS, G. The concepts of state responsibility and liability for nuclear damage (2008) 49 Acta Juridica Hungarica, at pp. 221–252. 58 See A. A. KYRTSIS, A., A., RENTETZI, M. From lobbyists to backstage diplomats:how insurers in the field of third party liability shaped nuclear diplomacy (2021) 37 History and Technology , at p. 380.

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